South-Western Legal Studies in Business

Sexual Favoritism Can Be Basis for Sex Discrimination

California high court held that a cause of action existed for sex discrimination by a woman who was passed over for promotion in favor of a less qualified woman who was having an affair with the supervisor doing the hiring. It was part of a pervasive demeaning work atmosphere for women.

Topic Employment Discrimination
Key Words

Sex Discrimination; Harassment; Retaliation; Favoritism

C A S E   S U M M A R Y

Miller worked for the California Department of Corrections for 11 years when she complained to the prison warden that her supervisor, Kuykendall, was having affairs with two women who also worked for him. Kuykendall was promoted to become warden of another prison and Miller was assigned to work for him. Kuykendall arranged for the two women he had affairs with to be assigned to the prison too. One of the women was promoted over Miller, despite Millerís seniority. Miller sued, contending that the favoritism Kuykendall exhibited for the women he had affairs with created a hostile work environment. Miller contended that she was subject to discrimination because of her complaints about the situation. The trial court and appeals court held for the Department. Miller appealed.


Reversed and remanded. The law prohibits retaliation against employees who believe they suffer illegal discrimination. That law should be liberally construed to deter employers from acting against employees from bringing complaints they believe to be well founded. A hostile work environment may be created even if an employee is not subjected to sexual advances. The courts consider all circumstances of the work environment. A claim of sexual harassment may be based on showing that widespread sexual favoritism was severe or pervasive enough to alter the working condition and create a hostile environment. Even if Miller was not subject to coercive behavior, the work atmosphere can be so demeaning to women that it constitutes an actionable hostile work environment.


Miller v. Dept. of Corrections, 115 P.3d 77 (Sup. Ct., Calif., 2005)

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